ZONDI AJ
punishment and ensures that criminal liability accords with clear and existing rules of
law. The Court held that the principle of legality was not compromised as the acts
allegedly committed by Mr Frankel constituted indecent assault, which was a
common law offence at the relevant time. Therefore, the High Court reasoned, the
declaration of invalidity operating retrospectively would not result in the criminalisation
of conduct that was not already criminal when the alleged offences were committed.11
[16]
The High Court accordingly made the declaration of invalidity, suspended it, and
made an interim reading-in. The relevant terms of the order read:
―1.
It is declared that section 18 of the [CPA], is inconsistent with the Constitution
. . . and invalid to the extent that it bars, in all circumstances, the right to
institute a prosecution for all sexual offences, other than those listed in sections
18(f), (h) and (i), after the lapse of a period of 20 years from the time when the
offence was committed.
2.
The declaration of constitutional invalidity in paragraph 1 above is suspended
for a period of 18 months in order to allow Parliament to remedy the
constitutional defect.
3.
Pending the enactment of remedial legislation by Parliament, or the expiry of
[18 months] . . . , whichever is sooner, section 18(f) of the [CPA] is to be read
as though the following words ‗and all other sexual offences, whether in terms
of common law or statute‘ appear after the words ‗the Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2007, respectively‘.
4.
The costs of this application shall be paid jointly and severally by the first
respondent and the second respondent until 20 January 2017, including the
costs of two counsel, after which date the costs shall be paid solely by the
second respondent.‖12
Proceedings in this Court
[17]
In this Court, the applicants seek confirmation of the declaration of invalidity.
They do not, however, support the confirmation of paragraphs 2 and 3 of the High Court
11
High Court judgment above n 2 at paras 85-6.
12
Id at 287.
9